Full opinion text
OPINION OVARD, Justice. This case involves a challenge to a zoning decision. The Town of Sunnyvale appeals the trial court’s judgment awarding Charles Mayhew, Sr., Charles Mayhew, Jr., the Estate of Audrey Mayhew, and Sunnyvale Properties, Ltd. (the Mayhews) $5 million in damages, $2,301,369.20 in prejudgment interest, $1,204,374.13 for attorneys’ fees for services rendered through trial, $100,000 in attorneys’ fees in the event of an appeal to this Court, costs in the amount of $175,038.14, as well as injunctive relief allowing the May-hews to develop their property under their original planned-development proposal. The Town attacks the trial court’s judgment on several grounds by challenging the trial court’s findings of fact and conclusions of law. In twenty-three points of error, the Town contends the claims were not ripe and that the trial court erred in entering judgment for the Mayhews. Specifically, in points of error one through four, the Town asserts that the trial court lacked jurisdiction to consider the Mayhews’ taking, substantive-due-proeess, and equal-protection claims because these claims were not ripe for review. In point of error nineteen, the Town challenges the legal and factual sufficiency of the evidence to support various findings made by the trial court. Because the Mayhews failed to reapply for development or seek variances, their claims were not ripe for review. Consequently, we reverse the judgment of the trial court and dismiss the Mayhews’ claims. FACTS AND PROCEDURAL HISTORY From 1941 to 1986, the Mayhews acquired 1196 acres of property located in the Town. They sought to develop their property in 1986. At that time, all residentially zoned property was subject to a minimum lot size requirement of one dwelling unit per acre. The Town adopted one-unit-per-aere zoning in 1973 because of septic tank problems. In 1985, the Mayhews met with various Town officials regarding a planned development for which they sought approval. The Mayhews had never sought a change in the existing agricultural-use zoning of their property until that time. The Mayhews told the Town a planned development would not be feasible under the current one-unifc-per-acre zoning. In 1986, after meeting with the Mayhews, the Town adopted a new comprehensive plan providing for a population of 25,000 by the year 2006. The Town also amended article XV of the Town’s zoning ordinance to permit planned developments with homes built on less than one acre. The Mayhews paid more than $500,000 to conduct studies and prepare reports evaluat-mg various aspects of the planned development. In July 1986, the Mayhews gave the planned development application to the Town’s planning and zoning committee for preliminary review. At that time, the May-hews’ application said they requested approval for the budding of 3650 to 5025 units. Two months after the Mayhews submitted their application to the planning and zoning committee, the Town passed a moratorium on planned developments. The Town, however, continued to process the Mayhews’ application. The Town’s planning and zoning committee recommended that the Town Council vote to deny the application. In a memorandum, the committee said the proposed density was too high, the availability of adequate sewer service was uncertain, the public facilities were inadequate, the fiscal impact was negative, and there was a potential for an adverse impact on community characteristics. The memorandum further reported that a proposal with less density would be “preferred.” After the planning and zoning committee recommended denial, the Mayhews met with Town officials. The Mayhews said they would submit the planned development application to the Town Council requesting approval for 3600 total units (slightly more than three units per acre). The Mayhews submitted the application for a planned development (PD application) to the Town Council in December 1986. The Town Council denied the Mayhews’ PD application on January 13, 1987. The Mayhews did not reapply; nor did they utilize procedures for obtaining variances contained in the Town’s zoning ordinance. The Mayhews did not contact officials from the Town after the Town Council denied the application. Instead, on March 6, 1987, approximately two months after the Town denied their PD application, the May-hews instituted this suit. Three days after the Mayhews filed suit, the Town passed another moratorium on planned developments. That moratorium lasted four months. At some time after the Mayhews filed suit, their neighbors, the Lup-tons, filed a PD application. The Town processed that application. The Town later denied the Luptons’ application. The trial court initially granted summary judgment in favor of the Town, from which the Mayhews appealed. This Court affirmed the summary judgment in favor of the Town regarding statutory violations alleged by the Mayhews. See Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 299 (Tex.App.—Dallas 1989, writ denied), cert. denied, 498 U.S. 1087, 111 S.Ct. 963, 112 L.Ed.2d 1049 (1991) (Mayhew I). This Court further found, however, that issues of material fact existed. We reversed the summary judgment on the constitutional grounds and remanded the cause to the trial court regarding these issues and the issue of ripeness. In that opinion, we stated, “If the door [to further development applications] is closed, then [the Mayhews] cannot develop [their] land. A property owner need not engage in futile reapplications.” Mayhew I, 774 S.W.2d at 289. This appeal is from the trial on the merits. The Mayhews’ theory at trial regarding ripeness was that the Town’s denial of their PD application and their neighbors’ PD application and the imposition of the moratoria together established it would be useless or futile to reapply for development. As set forth above, the trial court entered judgment in favor of the Mayhews. The trial court entered the following findings of fact and conclusions of law applicable to ripeness. Findings of Fact 101. In denying the application for planned development approval for the Mayhew Ranch Planned Development and the application for planned development approval for the [Luptons’] Planned Development, and in enacting numerous morato-ria on applications for consideration of planned development approval, the Town of Sunnyvale has acted pursuant to an official policy not to allow development with a density of greater than one dwelling unit per acre. 130. The Town of Sunnyvale considered and rejected countless alternative densities during the consideration of the application for Planned Development Approval for Mayhew Ranch Planned Development and permutations to the density originally proposed by plaintiffs. 131. The actions of the Town of Sunnyvale reveal a pattern and practice which demonstrates the intent of the Town of Sunnyvale to deny any application for development approval with a density greater than one dwelling unit per acre. 132. Plaintiffs have exhausted all of the possible remedies and avenues of relief which were realistically available to them in the Town of Sunnyvale. 133. The Town of Sunnyvale has closed the door on future reapplieations by Plaintiffs at a realistic or economically viable density. Conclusions of Law 186. Plaintiffs have exhausted all of the possible remedies and avenues of relief which were realistically available to them in the Town of Sunnyvale. 187. The Town of Sunnyvale has closed the door on future reapplications by Plaintiffs at a realistic or economically viable density thus rendering the possibility of reapplication futile. 188. Reapplication by Plaintiffs for planned development approval with Defendant Town of Sunnyvale would have been, and is still, futile. 189. When the Town Council considered the application for planned development approval for the Mayhew Ranch Planned Development, the Town Council had the authority to and did consider and reject each and every level of density between one [1] and four and two-tenths [4¾] dwelling units per acre. 190. This case was ripe for adjudication. APPLICABLE LAW 1. Standard of Review — Findings and Conclusions Findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict upon special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref'd n.r.e.). Findings of fact are not conclusive, however, when a complete statement of facts appears in the record. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.—Houston [14th Dist.]), writ ref'd n.r.e. 699 S.W.2d 199 (Tex.1985) (per curiam); Stephenson v. Berlitz, 537 S.W.2d 287, 289 (Tex.Civ.App.—Beaumont 1976, writ ref'd n.r.e.). An appellant may attack the trial court’s findings of fact on both legal and factual sufficiency grounds. See Valencia v. Garza, 765 S.W.2d 893, 896 (Tex.App.—San Antonio 1989, no writ). A conclusion of law is reviewable as a question of law. Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex.App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.), overruled on other grounds by Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 894 (Tex.1991). An appellant may not challenge a trial court’s conclusions of law for factual insufficiency. However, an appellate court may review the trial court’s conclusions drawn from the facts to determine their correctness. Id. If an appellate court determines a conclusion of law is erroneous, but the judgment rendered was proper, the erroneous conclusion of law does not require reversal. Scholz v. Heath, 642 S.W.2d 554, 559 (Tex.App.—Waco 1982, no writ). 2. Standard of Review — Legal Sufficiency Points A legal sufficiency point is a “no evidence” point presenting a question of law. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In reviewing a “no evidence” point of error, we consider only the evidence and inferences supporting the trial court’s finding. We disregard all contrary evidence and inferences. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). We uphold the trial court’s findings unless: (1) there is a complete absence of evidence to support the fact found; (2) the rules of law or evidence prohibit giving weight to the only evidence offered to prove the fact; (3) the evidence in support of the fact amounts to no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the fact. Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991). If we sustain a “no evidence” point and the proper procedural steps have been taken, we may disregard the finding under attack and render judgment for the appellant unless, in the interest of justice, another trial is required. Garza, 395 S.W.2d at 823. 3.Standard of Review — Factual Sufficiency Points In reviewing factual sufficiency points, we consider all of the evidence, including any evidence contrary to the judgment. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980) (per cmiam). We cannot set aside a finding unless it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). In reversing for factual insufficiency, the court of appeals must detail the evidence relevant to the issue in consideration and clearly state why the finding is factually insufficient. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (op. on reh’g). 4.Land-Use Regulation Challenges— Generally A plaintiff seeking to challenge a local government’s refusal to rezone his property may bring causes of action for a taking without due process, a taking without just compensation, denial of substantive due process, and denial of the right to equal protection of the laws. See Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1540 (11th Cir.), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991). Local zoning decisions that violate a land owner’s constitutional rights may give rise to claims for relief under 42 U.S.C. section 1983. See Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir.1989); Brady v. Town of Colchester, 863 F.2d 205, 209-10 (2d Cir.1988). 5. Ripeness “Ripeness” is a question of timing. See Binker v. Pennsylvania, 977 F.2d 738, 753 (3d Cir.1992). Federal courts view this doctrine as an offshoot of the case or controversy requirement under Article III of the federal constitution. Courts also characterize the doctrine as a prudential limitation on federal jurisdiction. See Taylor Inv. Ltd. v. Upper Darby Township, 983 F.2d 1285, 1289 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 304, 126 L.Ed.2d 252 (1993). Texas courts also apply the ripeness doctrine. See City of El Paso v. Madero Dev., 803 S.W.2d 396, 400 (Tex.App.—El Paso 1991, writ denied), cert. denied, 502 U.S. 1073, 112 S.Ct. 970, 117 L.Ed.2d 135 (1992). The primary issue the ripeness doctrine addresses is when a proper party may bring an action. See Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 411 (3d Cir.1992). Ripeness is a question of law. See Hoehne v. County of San Benito, 870 F.2d 529, 531 (9th Cir.1989). The ripeness doctrine avoids premature adjudication and prevents courts from entangling themselves in abstract disagreements over administrative policies. It also protects the administrative agencies from judicial interference until the agency formalizes an administrative decision and the challenging parties feel the effects of the decision in a concrete way. See Madero, 803 S.W.2d at 398-99. The ripeness doctrine involves the issue of jurisdiction of the subject matter and power to render a particular relief. See id. at 399. The ripeness issue regarding land-use regulations concerns whether courts can determine what types of uses a regulatory body will permit for the property. It follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether regulation has gone ‘too far’ unless it knows how far the regulation goes. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2566, 91 L.Ed.2d 285 (1986) (emphasis added). The same standards may also apply to equal pro-teetion, substantive due process, and procedural due process claims. See Herrington v. County of Sonoma, 857 F.2d 567, 569 & n. 1 (9th Cir.1988) (Herrington II), cert. denied, 489 U.S. 1090, 109 S.Ct. 1557, 103 L.Ed.2d 860 (1989). a. Takings Claims The United States Supreme Court has referred to a regulation that “goes too far” as a taking. Williamson County Regional Planning Comm’n. v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985); Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). However, that Court made it clear that takings claims are not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue. See Williamson, 473 U.S. at 186, 105 S.Ct. at 3116. Generally, a final decision requires at least (1) rejection of a development plan, and (2) denial of a variance. See id. at 188-91, 105 S.Ct. at 3117-19; Hoehne, 870 F.2d at 534. The ripeness doctrine requires the plaintiff to apply for a variance to establish to what extent the regulatory body will permit development. Only after application and the denial of a variance can a court determine whether the regulation has gone “too far.” See Eide v. Sarasota County, 908 F.2d 716, 725 n. 16. (11th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991). The only way to avoid the final-decision requirement is if attempts to comply with the requirement would be futile. A property owner generally cannot rely on the futility exception until he or she makes at least one meaningful application for development. See MacDonald, 477 U.S. at 353 n. 8, 106 S.Ct. at 2568 n. 8. One application may be enough to establish that the regulatory body made a final decision if it is clear the regulatory body will deny all further applications for use or development. See A.A. Profiles, Inc. v. City of Fort Lauderdale, 850 F.2d 1483, 1487 (11th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1743, 104 L.Ed.2d 180 (1989). In Williamson County, the plaintiff brought an action pursuant to 42 U.S.C. section 1983 alleging that a county planning commission had taken its property without just compensation. Williamson, 473 U.S. at 182, 105 S.Ct. at 3114. The United States Supreme Court first construed the plaintiffs complaint “as stating a claim under the Just Compensation Clause” and then dismissed the complaint because it was not ripe for adjudication, holding as follows: because [the plaintiff] has not yet obtained a final decision regarding the application of the zoning ordinance and subdivision regulation to its property, nor utilized the procedures Tennessee provides for obtaining just compensation, [the plaintiff’s] claim is not ripe. Id. at 186, 105 S.Ct. at 3116. The Court found the plaintiff had not obtained a “final decision” because the plaintiff: did not seek variances that would have allowed it to develop the property according to its proposed plat, notwithstanding the Commission’s finding that the plat did not comply with the zoning ordinance and subdivision regulations. It appears that variances could have been granted to resolve at least five of the Commission’s eight objections to the plat. The Board of Zoning Appeals had the power to grant certain variances from the zoning ordinance ... [and] had the power to grant variances from the subdivision regula-tions_ Indeed, the Temple Hills Committee had recommended that the Commission grant variances from those regulations. Nevertheless, [the plaintiff] did not seek variances from either the Board or the Commission. Id. at 187-88, 105 S.Ct. at 3117 (emphasis added). The Court concluded as follows: [The plaintiff] has not yet obtained a final decision regarding how it will be allowed to develop its property. Our reluctance to examine taking claims until such a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause. Although “[t]he question of what constitutes a ‘taking’ for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty,” this Court consistently has indicated that among the factors of particular significance in the inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. Those factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question. Id. at 190-91, 105 S.Ct. at 3118-19 (emphasis added) (citations omitted). The Court then addressed the plaintiffs claim under the due process theory that a “regulation that goes so far that it has the same effect as a taking by eminent domain is an invalid exercise of the police power, viola-tive of the Due Process Clause of the Fourteenth Amendment.” Id. at 197, 105 S.Ct. at 3122. The Court similarly dismissed the complaint as premature, holding it was not ripe for the same reasons. Id. at 199-200, 105 S.Ct. at 3123. b. Equal Protection and Substantive Due Process Claims Whether the same ripeness standard that applies to takings claims also applies to equal protection and substantive due process claims depends on the way the plaintiff asserts those claims at trial. See Eide, 908 F.2d at 725 n. 16; Herrington II, 857 F.2d at 569. Where a cause of action for substantive due process violations, in effect, relates to the same issues and involves the same facts as the takings claim, courts have applied the two-pronged final decision rule used in takings cases. See Herrington II, 857 F.2d at 569. In Eide, the Eleventh Circuit said courts should apply the same “takings” ripeness standard to equal protection, substantive due process, and takings claims where the plaintiff contends the regulatory body deprived the landowner of all use of his or her property. Eide, 908 F.2d at 725 n. 16. Courts have also held the same ripeness requirement applies in all cases involving as-applied challenges to regulatory takings, whether based on the just compensation clause, the due process clause, or the equal protection clause. See Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 507 (9th Cir.1990), cert. denied, 502 U.S. 943, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991); Shelter Creek Dev. Corp. v. City of Oxnard, 838 F.2d 375, 379 (9th Cir.), cert. denied, 488 U.S. 851, 109 S.Ct. 134, 102 L.Ed.2d 106 (1988). c. The Futility Exception Futility is an exception to the ripeness doctrine. Courts may review land-use regulations after only one denial, and a landowner need not reapply where reapplication would be useless or futile. See MacDonald, 477 U.S. at 352 n. 8, 106 S.Ct. at 2568 n. 8; Agins, 447 U.S. at 259-60, 100 S.Ct. at 2140-41. Courts have not clearly articulated the precise test regarding when the futility exception applies. Courts hold it is futile to request a variance if the land-use regulation does not permit variances. See Herrington II, 857 F.2d at 569-70. A landowner may also establish futility by showing that, after the regulatory body denied one application, it more restrictively zoned the property. See Hoehne, 870 F.2d at 535. Moreover, a landowner may establish futility by showing that the regulatory body rejected a sufficient number of prior applications. See American Sav. & Loan Ass’n v. Marin County, 653 F.2d 364, 371 (9th Cir.1981) (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 116 & n. 17, 98 S.Ct. 2646, 2655 & n. 17, 57 L.Ed.2d 631 (1978)). The landowner must make at least one “meaningful application.” This requirement does not mean that if the regulatory body rejects one “exceedingly grandiose” development plan application, this indicates the body will reject all other land-use applications. See MacDonald, 477 U.S. at 354 n. 9, 106 S.Ct. at 2569 n. 9. The futility exception applies where the manner in which the regulatory body rejects the first application makes it clear it will not approve any project. See Southern Pac., 922 F.2d at 504 & n. 7. APPLICATION OF THE LAW TO THE FACTS 1. Ripeness а. Due Process and Just Compensation Takings Claims In its first and fourth points of error, the Town contends the trial court incorrectly concluded that the Mayhews’ takings claims were ripe for review. The record reflects that the Town’s zoning ordinance then in effect provided for procedures to obtain planned development approval for development at greater than one unit per acre. The ordinance also provided for procedures to obtain special-use permits and variances from existing zoning. The record reflects that the Mayhews did not file another PD application or an application for variances. The Mayhews do not dispute the fact that they filed only one formal PD application before filing suit. The Mayhews brought a due process takings claim and a just compensation claim pursuant to 42 U.S.C. section 1983 in their First Amended Original Petition. They alleged the application of the Town’s zoning ordinance and the denial of their PD application deprived them of all economically viable use of their land in violation of their right to due process. They alleged damages in excess of $15,000,000 and asked for an injunction prohibiting the Town from enforcing the ordinance against them. The Mayhews had the burden to show their claims were ripe. See Madero, 803 S.W.2d at 400-01; Lake Nacimiento Ranch Co. v. San Luis Obispo County, 841 F.2d 872, 876 (9th Cir.1987), cert. denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988). The trial court concluded there was a taking and that the Mayhews’ claims were ripe. We conclude, however, that the claims were not ripe. The claims could not be ripe for determination until the government entity charged with implementing the regulations reached a final decision regarding the application of its regulations to the property at issue. Williamson County, 473 U.S. at 186, 105 S.Ct. at 3116. Because the May-hews did not reapply for development or seek to develop their property by obtaining variances, they did not establish that the Town made a final decision regarding what development the Town would permit on their property. See MacDonald, 477 U.S. at 353 n. 8, 106 S.Ct. at 2568 n. 8. This Court does not know how far the Town’s regulations go, and we conclude the claims are premature. See Williamson County, 473 U.S. at 186-87, 105 S.Ct. at 3116-17. b. Substantive Due Process and Equal Protection Claims In its second, third, and fourth points of error, the Town contends the trial court incorrectly concluded that the May-hews’ substantive due process and equal protection claims were ripe for review. In their petition, the Mayhews pleaded that the Town’s ordinance, as applied to them, denied them substantive due process and equal protection. Under both of these claims, the Mayhews complained of the use of then-property, stating that, “As a result of the decision of the Town Council of the Town of Sunnyvale and the resulting continued application of an unconstitutional zoning ordinance of the Town of Sunnyvale to the plaintiffs and the use of plaintiffs property, plaintiffs have suffered injury....” The MacDonald reapplication requirement applies to the Mayhews’ substantive due process and equal protection claims because, as the Mayhews allege these claims, they complain that the Town’s use of their property injured them. The Mayhews also argued at trial that the Town’s actions deprived them of all beneficial use of their property. See Eide, 908 F.2d at 725 n. 16. They contended they could not derive a profit even from agricultural use. Regarding these claims, they argued that the Town used their property as a “park” and converted it to permanent open space for the public. They further argued at trial that the evidence regarding their equal protection and substantive due process claims was the same as that supporting their takings claim. We see no reason to treat the Mayhews’ substantive due process and equal protection claims differently from their takings claim because (1) under each cause of action they complain of the use of their property; (2) the damages alleged for their substantive due process and equal protection claims are the same as for their takings claim; (3) the May-hews alleged an amount of damages under all three claims ($15,000,000) that would, based on their evidence, compensate them for a complete taking; (4) the Mayhews based their complaints at trial on the contention that the Town did not permit them an economically viable use for their property; and (5) under their equal protection and substantive due process claims, the Mayhews sought money damages for the total loss of the property rather than just an injunction and perhaps some money damages, the usual remedy for such claims. All of the Mayhews’ as-applied claims turn on issues regarding the deprivation of their property due to land-use regulations applied to the property. See id.: see also Herrington II, 857 F.2d at 569 n. 1. Therefore, these as-applied claims are not ripe until the Mayhews make further application to the Town regarding permitted uses for their property. See Eide, 908 F.2d at 725 n. 16; see also Southern Pac., 922 F.2d at 507. 2. Futility The Mayhews contended at trial that it was futile to reapply for development approval. The trial court’s conclusions of law regarding futility are as follows: 187. The Town of Sunnyvale has closed the door on future reapplications by Plaintiffs at a realistic or economically viable density thus rendering the possibility of reapplication futile. 188. Reapplication by Plaintiffs for planned development approval with Defendant Town of Sunnyvale would have been, and is still, futile. In its argument under points of error one through four, the Town contends the trial court’s conclusions of law regarding futility are incorrect. The Town contends the May-hews did not meet their burden to prove reapplication would be useless or futile. See MacDonald, 477 U.S. at 353 n. 8, 106 S.Ct. at 2568 n. 8; Agins, 447 U.S. at 259-60, 100 S.Ct. at 2140-41; see also Samaad v. City of Dallas, 940 F.2d 925, 934 (5th Cir.1991) (burden of proof). The record reflects that after the planning and zoning committee recommended that the Town deny the Mayhews’ PD application, Charles Mayhew, Jr. (Chuck) met with some Town officials and two Town Council members. Chuck testified that at the meeting, the Mayhews offered compromises and agreed to decrease the proposed density in the PD application from the requested range of 3650 to 5025 units to a total of 3600 units. The Mayhews also offered to pay for additional development costs and expenses. James Northrup, a land developer who worked with the Mayhews to put together their PD application, testified that the May-hews did not reapply to the Town because (1) the Town put a moratorium on planned developments; (2) the Town decided against reconsidering their PD application; (3) the Town also rejected the Luptons’ PD application; (4) the citizens of the Town elected some “strident [one-unit-per-acre development] supporters” after the Town rejected the Mayhews’ PD application; and (5) the Mayhews had already gone through “eighteen months of negotiations” with the Town. He further testified the Mayhews believed reapplying was futile because “they knew they had an agreement [with the council members they met with] and then they saw [the PD application] denied.” Chuck testified that the Mayhews’ plan was to sell their property to the Trammel Crow Company (Crow) for development. He said the planned development would have been feasible with a density of less than 3600 units if the Town paid some development costs. The Mayhews said in their pleadings that they told Town officials that 3500 was the minimum number of units that would make the development economically feasible. They further pleaded that Town officials asked them for an analysis regarding the costs the Town would have to pay to reduce the number of units to 3000. The Mayhews did not resubmit a plan with reduced density after the denial. Chuck testified that, after the denial, he did not speak to any Town officials about reconfiguring the application with different densities or different amenities. He said he told the Town officials that the lowest density the Mayhews would agree to was 3600 units, unless the Town paid some development costs. Chuck testified that he did not have an opinion regarding whether development at 3500 units would be economically viable, and then said he did not think it would be. He agreed that he said during his deposition that a development at 3500 units would be economically viable if the Town paid some development costs. He said the number “3500” was a typographical error in his deposition, and he meant “3600.” He said no market exists for the sale of the Mayhews’ land. Chuck said other developers besides Crow negotiated with the Mayhews regarding development. Chuck testified that no one called trying to purchase the property since the Town denied their PD application. He said the Mayhews did not advertise the property and did not hire anyone to try to sell it after the denial. He called two or three companies in an attempt to sell the land and was not successful. He said he did not make contingency plans in case the Town denied the PD application. He said that, after the denial of the application, the Mayhews talked to one company about using the property as a dump or a racetrack, although neither use ever occurred. Chuck testified that, before the denial, another development company sought to enter into a joint venture with the Mayhews to develop the property. He said the Mayhews did not want to risk being part of such a joint venture. Instead, the Mayhews sought to sell the property “outright.” Chuck said the developer, Bellamah, a subsidiary of New Mexico Power and Light, offered to enter into the development joint venture with the Mayhews. Bellamah was to contribute cash in an amount equal to the value of the land contributed by the Mayhews. The two groups were to share the profits. The May-hews viewed the joint venture as being more “risky” than the sale of the property to Crow. John Taylor Boyd, a real estate broker, testified for the Mayhews. He said Crow negotiated with the Mayhews to purchase the Mayhews’ property for $23 million for development purposes. Boyd worked with Crow and the Mayhews regarding the proposed sale. He testified that Crow would not develop the property at less than 3600 units because Crow would not “do” a community without adding “fancy stuff.” Crow would not go below 3600 units because Crow would not be able to make a profit and still put in “beautiful corridors” and other “fancy” amenities. Michael Smiley, a land planner testifying for the Mayhews, testified that the Mayhews intended to develop their land to be like Highland Park, with high levels of quality and abundant landscaping. He said Highland Park is an upper-income area. Much of the evidence at trial concerned the viability of the Mayhews’ PD application. There was little or no evidence regarding other possible uses for the property. The Mayhews did not submit applications for variances for other uses. The evidence regarding the Town’s denial of the Mayhews’ PD application does not establish futility. See MacDonald, 477 U.S. at 347, 106 S.Ct. at 2565. We cannot consider the Mayhews’ claims until they obtain a final decision regarding what land use the Town may permit. The Mayhews assert that they should not be required to reapply for any land use that involves a density of less than 3600 units, the density they requested. However, as stated by the United States Supreme Court, in MacDonald: The denial of [a particular plan for relatively intense residential development] cannot be equated with a refusal to permit any development.... Land use planning is not an all or nothing proposition. A governmental entity is not required to permit a landowner to develop property to [the] full extent he might desire or be charged with an unconstitutional taking of property. Here, ... the refusal of the defendants to permit the intensive development desired by the landowner does not preclude less intensive, but still valuable development. Id. (emphasis added) (quoting lower court opinion). Similarly, in Baytree of Inverrary Realty Partners v. City of Lauderhill, a developer alleged a takings claim because the city refused to grant its application to amend the existing zoning. It sought to build a 327-unit residential apartment complex on its property. The Eleventh Circuit Court of Appeals said: Baytree has only been told that it cannot build a 327-unit residential apartment complex on its property. It has not been told that no development of its property is allowed. That Baytree may not be able to develop exactly what it originally wanted does not mean that its investment-backed expectations are eradicated. “Neither deprivation of the most beneficial use of land, nor a severe decrease in the value of property, measures up to an unlawful taking.” Baytree of Inverrary Realty Partners v. City of Lauderhill, 873 F.2d 1407, 1410 (11th Cir.1989) (citation omitted). Therefore, denial of the Mayhews’ application did not establish futility. The Mayhews next contend reapplication is futile because individual members of the Town Council have so indicated. Chuck testified that the Town has never granted a variance from one-unit-per-acre development since the Town implemented that zoning. The Mayhews contended at trial that the new council members would not have voted to approve any amended application. Several witnesses also testified that investors assume the Town will deny all development applications. They said the Town’s denial of the Mayhews’ PD application indicates the Town will not approve any development. However, the Town Council acts as a governing body, and this Court will not consider the statements of individual members regarding how they have voted or may vote when deciding whether the Town will approve any formal applications for development or variances. See Madero, 803 S.W.2d at 401; Mayhew I, 774 S.W.2d at 298-99; see generally Sosa v. City of Corpus Christi, 739 S.W.2d 397, 404-05 (Tex.App.—Corpus Christi 1987, no writ) (holding that individual city council members may not testify regarding their individual mental processes, indicating “good faith” of council, which acts as whole, cannot be shown by such testimony). The Mayhews’ informal endeavors to obtain approval of their development plans do not constitute a formal application, which is required for finality. See Madero, 803 S.W.2d at 401. The result of local elections also does not establish that the Town Council would reject further applications for development or for variances. We further hold that testimony about the Town’s “mood” and speculation about what development the Town would permit is no evidence of futility. See id. The Mayhews were required to bring formal applications before the Town Council. a. The Effect of the Moratoria and the Luptons’ Application (1) The Moratoria The Mayhews assert that it was futile to reapply because the Town placed moratoria on planned developments. Other courts have held that where a regulatory body completely bars a landowner from building on his property, reapplication for permits or variances is futile. See A.A. Profiles, 850 F.2d at 1487 (city not only temporarily and later permanently suspended approval of development project, but also rezoned property, effectively placing “complete moratorium” on development); Corn v. City of Lauderdale Lakes, 816 F.2d 1514, 1516 (11th Cir.1987) (city completely banned development on the property and conceded that even variances were not available to landowner). The court in Calibre Spring Hill, Ltd., discussed moratoria and futility. In that case, Calibre sought to rezone its property to build an apartment complex. The county denied its rezoning application. Calibre filed suit alleging the county had taken its property without due process and without just compensation. The Georgia federal district court said: In [Com and A.A. Profiles ], the Eleventh Circuit held that since no development was allowed, [the] plaintiffs’ claims were ripe for adjudication. It has not been decided how much development will ultimately be permitted on [Calibre’s] land. [Calibre] does not assert that [the county] has aimed its zoning decision at halting plaintiff’s development, nor is there a moratorium on development of [Calibre’s] land. The Boards’ denial of [Calibre’s] single request for rezoning does not establish whether [the county] has denied [Calibre] all reasonable beneficial use of its property, and, therefore, is not a final reviewable decision under Williamson. Therefore, [Calibre’s claims] are not ripe.... Calibre Spring Hill, Ltd. v. Cobb County, Co., 715 F.Supp. 1577, 1580 (N.D.Ga.1989) (emphasis added). In this case, the trial court entered the following findings of fact regarding the effect of the moratoria and the Luptons’ PD application on futility: 101. In denying the application for planned development approval for the Mayhew Ranch Planned Development and the application for planned development approval for the [Luptons’] Planned Development, and in enacting numerous morato-ria on applications for consideration of planned development approval, the Town of Sunnyvale has acted pursuant to an official policy not to allow development with a density of greater than one dwelling unit per acre. 181. The actions of the Town of Sunnyvale reveal a pattern and practice which demonstrates the intent of the Town of Sunnyvale to deny any application for development approval with a density greater than one dwelling unit per acre. 133. The Town of Sunnyvale has closed the door on future reapplications by Plaintiffs at a realistic or economically viable density. In point of error nineteen, the Town challenged the legal and factual sufficiency of the evidence to support these findings. We first address point of error nineteen as it concerns the legal sufficiency of the evidence to support these findings. See Best, 786 S.W.2d at 671. Regarding the evidence in support of the findings, the record reflects that the Town passed a moratorium on planned developments after the Mayhews filed their PD application. Also, two years after the Mayhews filed suit, the Town denied the Luptons’ PD application. This evidence, standing alone, constitutes evidence that the Town would not allow development at more than one unit per acre and indicated that reapplication would be futile. We overrule the Town’s point of error to the extent it complains of the legal sufficiency of the evidence to support these findings. We now review these findings for factual sufficiency and review all the evidence that concerns these findings. See Burnett, 610 S.W.2d at 736. The record reflects that the Town passed a moratorium in September 1986, approximately two months after the Mayhews first submitted their application to the Town’s planning and zoning committee. This moratorium apparently was in effect until the Spring or Summer of 1987. After the denial, the Mayhews filed suit against the Town on March 6, 1987. The Town passed a second moratorium on March 9, 1987, three days after the Mayhews filed suit. That moratorium resolution said it was to last approximately four months, until July 1, 1987. No moratorium was in effect between July 1987 and May 1988, when the Town passed another moratorium on planned developments. The May 1988 moratorium lasted approximately six months. In May 1989, the Town passed another moratorium that said the moratorium “shall not exceed a period beyond November 8, 1989.” It is not clear how long that moratorium was in effect. The record reflects that each of the morato-ria said the Town was undergoing rapid growth and that the Town should manage this growth in an orderly manner. The mor-atoria resolutions said “necessary studies and committee reports must be made in order to manage and properly plan for such growth.” Chuck Mayhew testified that after the Town denied the Mayhews’ PD application, the Town ordered a moratorium on PD applications. He said the moratorium was “in effect when the lawsuit was filed.” He said that, after the denial, the Town passed a moratorium prohibiting PD applications. The Mayhews do not dispute the fact that the Town continued to process the Mayhews’ PD application despite the fact that it passed a moratorium on planned developments. Northrup testified that the Town sought to encourage planned developments. Northrup said the Town was “ready for a quality project” and the people of the Town were receptive to a PD application. He testified the people he talked to at meetings regarding the Mayhews’ PD application seemed ready for a quality planned development. He said the Town’s mayor pro tem expressed a willingness to modify existing zoning to allow development at a density of greater than one unit per acre. The Mayhews state in their brief, and the record reflects, that the Town amended its zoning ordinance in 1986. The amendment allowed the Town to grant approval of PD applications with density greater than one unit per acre. Northrup testified that after the Town denied the Mayhews’ application, the Town contemplated reconsidering the application. In considering all of this evidence, we note that, before the Town denied the Mayhews’ PD application, the planning and zoning committee said a less intense development than the 3650 to 5025 total units initially proposed would be “preferred.” It expressed concern with density, municipal facilities, and environmental problems regarding the Duck Creek plant. In the resolution passing the March 1987 moratorium, the mayor pro tem said the Town needed to conduct studies regarding growth and development. Neither the Town’s March moratorium resolution nor the planning and zoning committee’s memorandum states that the Town would not allow any development. The Town merely denied the Mayhews’ single PD application for a minimum of 3600 units. Further, the mora-toria did not prohibit applications for variances. This evidence does not support the trial court’s inference that the Town’s official policy was to deny development at more than one unit per acre. There were still procedures available to the Mayhews for developing their property when they filed suit, including procedures to obtain variances. Compare Hoehne, 870 F.2d at 535 (futile for landowner to seek general plan amendment approval where no variance procedure available and where regulatory body established unwillingness to allow development by rezoning property to further restrict development) and Herrington II, 857 F.2d at 569-70 (futile for landowner to reapply for development approval where only procedure available was general plan amendment and testimony established that this procedure was not a practical alternative) with Williamson, 473 U.S. at 188-90, 105 S.Ct. at 3117-18 (developer who was denied plat approval for subdivision required to use available variance procedures to obtain final decision regarding what use of property will be permitted). The fact that a moratorium on planned developments was in place did not establish that the Town foreclosed all development. The Town continued to process PD applications. It amended its zoning ordinance in 1986 to allow for planned developments at a density greater than one unit per acre. See Williamson, 473 U.S. at 188, 105 S.Ct. at 3117 (court found claims not ripe because landowner did not seek variance and also noted that committee had recommended granting of variances). This is evidence that the Town did not prohibit all development. Further, there is evidence that the May-hews did not consider filing another PD application. It is undisputed that the Mayhews were only interested in a density of 3600 units or more. John Boyd, the Mayhews’ real estate broker, testified that Crow, who negotiated with the Mayhews to purchase the property, would not purchase the property unless the Town approved an application with a density of at least 3600 total units. Chuck testified that he told the Town the Mayhews would not accept an approval of anything less than 3600 units. Chuck said he did not speak to any Town officials regarding reapplication after the Town Council voted to deny the Mayhews’ PD application. He said he told the Town Council on January 13,1987 that if the Town did not approve the PD application for 3600 units or more, it would be considered an “outright denial.” After the denial by the Town Council, the May-hews did not amend their PD application and apply for a less dense development or a variance. This evidence shows the Mayhews did not intend to reapply or seek variances if the Town denied their PD application. Whether a moratorium was in effect makes no difference because the Mayhews did not consider reapplication. The Mayhews’ stated position was similar to that of Hamilton Bank in Williamson. In that case, the bank said it was futile to seek variances after the zoning commission refused to approve its plat. The bank told the zoning commission it would not seek variances until the commission approved its plat. It filed suit instead of seeking variances from existing zoning. The United States Supreme Court held the bank was required to seek variances to have a final decision regarding whether its land had been taken. See Williamson, 473 U.S. at 187-88, 105 S.Ct. at 3116-17. Likewise, Com and AA Profiles, discussed above, do not stand for the proposition that the passing of any moratorium automatically renders all takings claims ripe. Com and AA Profiles stand for the proposition that, where the regulatory body prohibits all development, then further reapplication is futile. See A.A. Profiles, 850 F.2d at 1487; Corn, 816 F.2d at 1516. The Town did not forbid all development on the Mayhews’ property or on the property of other landowners. It continued to process PD applications. We cannot conclude from the evidence in the record that any moratorium caused reapplication to be futile because (1) the Town considered both the Luptons’ and Mayhews’ PD applications while a moratorium on planned developments was in effect; (2) the memorandum from the planning and zoning committee did not say it foreclosed all development on the Mayhews’ property; (3) the Mayhews could have applied for variances under other sections of the ordinance; (4) the Town’s March 1987 moratorium stated that it was for a short period so the Town could plan for development projects; (5) the Town considered other PD applications after the March moratorium; and (6) the Mayhews said they would not reapply for lesser density. The trial court’s inferences about the Town’s intent to deny development, based on this evidence, are not supported by factually sufficient evidence. (2) The Luptons’ Application The Mayhews assert that the Town’s denial of the Luptons’ PD application shows it was futile to reapply to the Town regarding the use of their land. The record reflects that the Town began reviewing the Luptons’ zoning case in December 1987, after the Mayhews had already filed suit. The Town denied the Luptons’ PD application more than two years after the Mayhews filed suit. Futility concerns the reasons why it is useless for an applicant to seek reapplication and allows the property owner to file suit rather than file useless applications for development approval. Because the Mayhews had already filed suit when the Town denied the Luptons’ PD application, it cannot be said that the Mayhews decided reapplication was futile based on the denial of their neighbors’ PD application. Regarding any later-developing ripeness indicated by the denial of the Luptons’ application, the record reflects the following: Dan Sefko, an urban planner testifying for the Town, said the Town asked his firm to review the Luptons’ “zoning case” in December 1987. The Luptons filed their PD application, and the Town considered it after the Town passed the March 1987 moratorium. Sefko said the Luptons’ planned development involved more than 1000 acres. It was similar to the Mayhews’ proposed development in location, size, and density and was also primarily for residential development. He testified that the Mayhews’ and Luptons’ applications were similar. The Mayhews’ application had a significantly higher quantity of open space. The Luptons’ development plan was consistent with the Town’s comprehensive plan. He said the density proposed by the Luptons (less than two units per acre) was appropriate for the Town. He did not know whether the Luptons’ PD application indicated sewer service would be available. Sefko agreed that a regulatory body may approve a PD application with conditions, such as conditions regarding sewer service. He said he did not study traffic issues regarding the Luptons’ application. Sefko testified that his firm did not serve as the clearinghouse for the Town’s analysis of the Luptons’ application. His firm did not prepare the report submitted to the Town regarding the Luptons’ application, but prepared a portion of it. He said the Luptons’ PD application satisfied the section of the ordinance that set forth the types of information required to be in PD applications: article XV. Sefko said he did not consider fiscal impacts in determining appropriate density. He said he generally recommended that the Town approve the Luptons’ application. Robert Ewalt, the Town manager, said the Town voted unanimously to deny the Luptons’ application. In the statement of facts, there is argument from the Town’s attorneys regarding why the Town denied the Luptons’ application. However, this is not evidence. See McCain v. NME Hosp., Inc., 856 S.W.2d 751, 757 (Tex.App.—Dallas 1993, no writ); Delgado v. Kitzman, 793 S.W.2d 332, 333 (Tex.App.—Houston [1st Dist.] 1990, no writ). There is nothing in the record from the Town’s planning and zoning committee or Town Council, such as a denial or recommendation memorandum, showing any stated reasons for the denial that this Court can compare with evidence regarding the Luptons’ plan. The Luptons’ application and related reports are not in the record. The Town may have denied the application based on specific safety or health concerns that would not pertain to other proposals. See Southern Pac., 922 F.2d at 504 & n. 7 (in deciding futility, court considered evidence that regulatory body denied another applicant variance, but rejected this as evidence of futility because denial was “based on specific safety and aesthetic concerns which would not pertain to other proposals.”) The Mayhews had the burden to prove futility. See Samaad, 940 F.2d at 934. The fact that the Town denied the Luptons’ application for an unspecified reason does not establish that the Town acted to deny all development at more than one unit per acre. We are aware that, in reviewing factual sufficiency points, we are not to substitute our judgment for that of the trial court regarding the credibility of the witnesses. See Aerospatiale Helicopter Corp. v. Universal Health Serv., 778 S.W.2d 492, 498 (Tex.App.—Dallas 1989, writ denied), cert. denied, 498 U.S. 854, 111 S.Ct. 149, 112 L.Ed.2d 115 (1990). Questions of intent and mental states are normally questions of fact left to the trier of fact who had the opportunity to judge the credibility of the witnesses. See Logan v. Mullis, 686 S.W.2d 605, 608 (Tex.1985). However, in drawing inferences about the Town’s intent to deny all development from the facts in the record, the trial court did not judge the credibility of the witnesses from the Town. The trial court did not weigh the “credibility” of the Town as a witness because the Town could not testify. The council members did not testify. The trial court was called upon, not to weigh the “credibility” of the Town as a witness, but to make inferences regarding futility based on the facts before it. We must weigh the reasonableness of the inferences that could be drawn by the trial court in light of all facts and circumstances. See Texas & N.O.R. v. Burden, 146 Tex. 109, 123, 203 S.W.2d 522, 531 (1947). Considering all the evidence in the record, and based on the objective evidence before the trial court regarding futility, we hold that an inference or conclusion that the Town intended to deny all development is incorrect. The manner in which the Town rejected the Mayhews’ application did not make it clear that the Town would refuse all projects. See Southern Pac., 922 F.2d at 504. Based on the facts of this case, we hold that this evidence does not support the finding that the Town prohibited all development at more than one unit per acre. Because variance procedures were available, we hold the May-hews were required to utilize them. See Williamson, 473 U.S. at 186, 105 S.Ct. at 3116. We sustain the Town’s point of error to the extent it complains of the factual sufficiency of the evidence to support findings of fact numbers 101, 131, and 133. b. Range of Densities The Mayhews next contend that reapplication was futile and the Town would not permit development of the Mayhews’ property because the Town had already considered and rejected a “range” of development possibilities. Apparently, this assertion refers to the Town’s consideration of a range of densities. In its findings and conclusions, the trial court found as follows: Findings of Fact 130. The Town of Sunnyvale considered and rejected countless alternative densities during the consideration of the application for Planned Development Approval for Mayhew Ranch Planned Development and permutations to the density originally proposed by plaintiffs. Conclusions of Law 189. When the Town Council considered the application for planned development approval for the Mayhew Ranch Planned Development, the Town Council had the authority to and did consider and reject each and every level of density between one [1] and four and two-tenths [4¾] dwelling units per acre. In point of error nineteen, the Town challenged the legal and factual sufficiency of the evidence to support this finding. It also challenged the correctness of the conclusion of law number 189. We first review the Town’s legal sufficiency point. In reviewing the evidence in support of this finding, we note that Chuck testified that the Town considered a range of densities. This is evidence in support of the finding that the Town considered a range of densities. We overrule this point of error to the extent it applies to the legal sufficiency of the evidence to support this finding. We now review for factual sufficiency this finding that the Town considered and rejected levels of density less than the 3600 units formally requested in the Mayhews’ PD application. Northrup testified that the Mayhews filed only one PD application. Chuck testified several times that the Mayhews submitted only one PD application and that the minimum number of units proposed was 3600. He said he did not “reconfigure” the application after the denial. He said the Mayhews told the Town they would not accept anything below 3600 units. In their PD applieation, the Mayhews did not request approval for less dense development. A review of all the evidence shows the Town considered only one PD application for the Mayhews, and that the proposed density was for a minimum of 3600 units. See Burnett, 610 S.W.2d at 736. We hold the evidence is factually insufficient to support the trial court’s finding that the Town considered a range of densities. The Mayhews contend that article XV, section five of the Town’s zoning ordinance authorizes the imposition of conditions on planned development approvals, including limits on the number of permitted units. They assert that article XV required the Town to approve their PD application and then propose conditions or changes to the plan. The trial court entered a finding of “fact” and also a conclusion of law that the Town Council had the authority to approve the Mayhews’ application with conditions, including a condition of lower density. This “finding of fact” is actually a conclusion of law because it addresses the Town’s power or authority. Accordingly, we address this as a conclusion of law rather than as a finding of fact. On appeal, the Town challenged both this finding and conclusion of law number 189. Section 5 of article XV of the ordinance is as follows: Deviation from the regulations established in this ordinance applicable to particular uses may be permitted when the developer demonstrates that adequate provisions have been made in the planned development to protect contiguous land uses, that pedestrian and vehicular traffic ... systems are safe, ... that the development will progress in orderly phases, and that the public ... welfare will be protected. For the PD district, use regulations applicable to a particular use shall be the same as if such use were situated in a district in which such uses are otherwise permitted in this ordinance, unless other restrictions and regulations are approved as a part of the development site plan and the PD district ordinance amendment. Contrary to the Mayhews’ contention, this section does not require the Town to approve a PD application at densities of less than those proposed. Chapter 16 of Mixon, Texas Municipal Zoning Law, cited by the May-hews, also does not cite Texas law requiring the Town to approve PD applications with condi